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On October 25, the House Judiciary Committee approved two bills with major implications for employers and employment-based immigration.

The Legal Workforce Act (LWA), H.R. 3711, passed the committee by a vote of 20 to 10. Introduced by Representatives Lamar Smith (R-TX) and Ken Calvert (R-CA), along with House Judiciary Committee Chairman Bob Goodlatte (R-VA), the bill would require U.S. employers to check the work eligibility of all future hires through the federal electronic verification system known as E-Verify.

Specific to the workplace, the LWA would:

Repeal the current paper-based I-9 system and replace it with a completely electronic work-eligibility check. Employers would attest through the electronic verification system that they had examined the new hire's employment and identification documents to ensure authenticity. Under the bill, employers have the choice to continue do the attestation on paper as well.

Phase-in mandatory E-Verify participation for new hires as follows:

Employers with more than 10,000 employees, within 6 months of enactment,

Employers with 500 to 9,999 employees, within 12 months of enactment,

Employers with 20 to 499 employees, 18 months after enactment.

Employers with 1 to 19 employees, 24 months after enactment.

Employers may seek a one-time six-month extension of the initial phase-in from the Department of Homeland Security (DHS).

Employers will have to perform an E-Verify check on employees who perform "agricultural labor or services within 18 months after enactment."

Grant employers a safe harbor from prosecution if they use the E-Verify program in good faith and, through no fault of their own, receive an incorrect eligibility confirmation.

Raise penalties on employers that knowingly hire illegal immigrants and create a penalty for individuals (employees or employers) who knowingly submit false information to the E-Verify system.

Require DHS to implement within 24 months of enactment two identity authentication pilot programs to help prevent against identity theft within the system.

Pre-empt state law on employer fines for immigration-related issues or require employers to verify work status or identity for work authorization purposes. States could, however, continue to award business licenses on the basis of compliance with the federal system. However, state law enforcement would be allowed to enforce the federal provisions and collect the fines.

To read further about the proposal, check out the House Judiciary Committee's summary of the bill.

The committee passed H.R. 4092, the Agricultural Guestworker Act (AGA), by a vote of 17 to 16. This bill, also sponsored by Representative Goodlatte, would create a new H-2C Temporary Agricultural Work Visa Program.

The AGA will:

Create a new H-2C agricultural guest worker program that will allow for "at-will" employment and will replace the existing H-2A program two years after enactment.

Cap the H-2C visas category at 450,000 visas per year, allowing for the cap increase under an automatic escalator.

Provide a maximum period of stay of 18 months for H-2C employees in temporary or seasonal jobs. H-2C employees in jobs that are themselves permanent can work for up to 36 months.

Require employers to pay H-2C employees no less than the state or local minimum wage, or 115 percent of the federal minimum wage, whichever is higher.

Require an employer to place a local job posting with the state workforce agency serving the local area where H-2C workers will be employed on its website for a minimum of 30 days.

For further information about this legislation, check out the House Judiciary Committee's summary of the bill for additional provisions.

The LWA and the AGA will now advance to the full House of Representatives for consideration. SHRM's government affairs staff will continue to be actively engaged in discussions on behalf of the HR profession and will provide updates on legislative developments in future editions of our HR Issues Update.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.